What is the Problem of Judicial Review?


Larry Alexander

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The "problem" of judicial review turns out to be a number of different problems that should be disaggregated. There are two main categories of such problems. The first concerns the fact that the legal norms being judicially enforced have nondemocratic provenances. I shall call this the "democratic" critique of judicial review. What is important to note about the democratic critique is that democratic majoritarianism comes in various shapes and degrees. The democratic critique may or may not apply to constitutional entrenchments of rights, constitutional entrenchments of powers, bicameralism and even parliamentary systems (as opposed to plebiscitary rule). Moreover, the democratic critique applies, not to the subjecting of legal norms to judicial interpretation, but to the origin of the legal norms so subject.

The second category of problems concerns the fact that it is the courts rather than some other institution that is interpreting the legal norms. Here, it is important to ask how the problems are affected by (1) whether judges are elected; (2) whether the norms they are interpreting are constitutional or statutory; (3) whether those norms deal with the separation of governmental powers, federalism, or individual rights; and (4) whether those norms are determinate rules or vague standards.

In sum, the judicial review "problem" is not one thing but potentially many, some more serious than others.